5 Considerations for Hospitals Facing Union Organization

The healthcare industry seems to be bucking a national trend of declining unionization. Some workers apparently find union membership more attractive when they are concerned about job security or working conditions, two issues that emerged in the recent economic downturn when hospitals had to deal with tightened budgets. The number of healthcare workers who are members of unions or covered by a collective bargaining agreement has increased to nearly 1 million in 2009, or approximately 12.9 percent of non-physician healthcare workers, according to the Bureau of Labor Statistics.

In the past six months alone, delayed contract negotiations have occurred and strikes planned at major institutions such as University of Chicago Hospital, Tufts Medical Center in Boston and Kaiser Permanente's Kaiser Los Angeles Medical Center, indicating a disruptive trend not restricted to one region. The nation's largest healthcare unions, such as California Nurses Association and Service Employees International Union, have been working to secure neutrality deals with large hospital chains, such as Nashville, Tenn.-based Hospital Corporation of America. HCA signed a neutrality agreement with the unions, allowing the organization of workers at 20 of the system's hospitals, in April 2010.

Kevin Troutman, JD, chair of the national healthcare practice at Fisher & Phillips, LLP, says unions remain focused on organizing healthcare workers, but most hospitals prefer to remain non-unionized. "In the absence of some compelling reason to be the contrary, most hospitals prefer to maintain union-free status," says Mr. Troutman. Employers cannot decide whether employees unionize or not, but they can point out disadvantages to unionization and take certain steps to reduce the disruption caused by organizing activities. "One of the most effective steps hospitals can take is to ensure effective, responsive communication programs showing that unionization is unnecessary," says Mr. Troutman. This is a threshold decision because it will likely determine whether or not hospital workers will be represented by a union.

Here are five more key considerations for hospitals to consider in regards to unions:

1. Neutrality agreements present risks, but may help hospitals plan for organizing activity ahead of time. Hospitals may be able to avert some distractions caused by union campaigns by striking a so-called "neutrality agreement," or a contract between a union and an employer under which the employer agrees not to oppose a union's attempt to organize its workforce. Such agreements come in several different forms, but in exchange for employer neutrality, unions may agree to tell the hospital when it will conduct organizing activities. The union may also agree to refrain from instigating negative publicity campaigns against the hospital or from trying to organize workers at certain other hospitals in the same system.

"When a union campaign is going on, it attracts considerable attention. The process is time-consuming and usually creates tension among employees," says Mr. Troutman. Negative public campaigns against the hospital or system may hurt the organization or even affect regulatory or other important activities. Some hospitals may prefer to know if and when a union organizing campaign is coming as opposed to not knowing. This allows the hospital to be proactive. "This depends on the agreement that the union and the hospital can reach," says Mr. Troutman, who admittedly does not favor or recommend neutrality agreements. "Whether or not to enter a neutrality agreement is something each hospital or system has to decide, based upon it’s own unique circumstances," he says.

2. Contingency plans can lessen the impact of strikes. Unions must give notice before striking in healthcare institutions and unionized hospitals should have contingency plans in place in case a strike occurs. Strikes, pickets and other concerted refusals to work may affect more than the hospital, since other organizations and/or employees will need to provide back-up support.

Supervisors or non-union employees may be asked to cover essential jobs. Contingency plans may reassign people working within the institution or assign additional work hours. A hospital may even have to curtail services or redirect patients for a period of time. Also, employee requests for time off may be cancelled if they coincide with a strike. "Strikes obviously create a huge disruption for hospital workers and patients," says Mr. Troutman.

3. Picketers can influence other workers and present security risks. Just as strikes may affect other providers in the community, the presence of picketers may influence areas of the hospital that are not directly involved in the strike. A strike can frighten patients, upset physicians and interfere with other aspects of hospital operations, such as construction work or delivery of supplies.

"Would truck drivers or construction workers still perform their jobs, or would the presence of a picket line stop them from making deliveries or working?" says Mr. Troutman. "Hospitals should evaluate who is making deliveries and who is working on the hospital campus and try to evaluate to what extent a picket line or strike may impact that activity as well." The hospital should also consider increasing internal and external security as a precaution for employees, visitors and patients.

4. The organization’s position regarding unionization should be stated clearly. If the hospital does not believe that unionization is in the best interest of the organization and its employees, the organization has the right to state this policy. "It's important for hospital to assess whether its workforce, including supervisors, managers and non-supervisors, understand the hospital's position regarding unionization," says Mr. Troutman, who says he has encountered situations where employees did not know their employer's position regarding unionization. This language must be carefully crafted, however, because the National Labor Relations Act limits what employers can say and how they can say it.

The following is a sample of a unionization policy: "Because of our basic philosophy, we prefer to operate our facilities without the interference of a union. We take this position because we believe that unionization could destroy the close relationship we strive to maintain with our employees and potentially undermine the quality of our services."

Mr. Troutman adds, "In these policies, the hospital can explain its position for remaining union-free and the basic reasons for its position. Even during an organizing campaign, hospitals can give examples of the impact that unionization has had in other healthcare settings. They can provide facts or opinions, but they cannot make promises or threaten employees." says Mr. Troutman.

"Employees clearly have the right to decide whether or not to be represented by a union, but in the absence of a neutrality agreement, the employer is in a much better position to ensure that its employees understand all the implications of such a decision," says Mr. Troutman. By publishing a policy describing its position regarding unionization, hospitals can encourage open communication and avoid some significant misunderstandings.

5. Experience dealing with unions may make certain executives more attractive to recruit. Hospitals may seek leaders who have strong backgrounds or extensive experience in working or negotiating with unions, particularly in regions where unionization is most prevalent, such as the upper Midwest or Eastern regions. Such experience can be invaluable in managing union relationships or in preserving a union-free environment. Executives who can demonstrate how they have been responsive to employee concerns may also be attractive, especially where unions are interested in organizing, thus inserting themselves between management and employees.